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Joint JEDI Award To Microsoft, AWS Would ‘Reduce DoD’s Litigation Risk’: Procurement Expert

If the Department of Defense is determined to end the legal wrangling over the contract, amending the award to include multiple vendors might be a solution, a professor at George Washington University Law School tells CRN.

As the U.S. Department of Defense continues to face litigation that’s holding up the massive JEDI cloud computing project, options for the DoD include amending the award to incorporate multiple cloud vendors, an expert on government procurement law told CRN.

The Department of Defense selected Microsoft for the $10 billion Joint Enterprise Defense Infrastructure contract in October of 2019. But since then, public cloud front-runner Amazon Web Services has repeatedly contested the outcome in the courts.

[Related: Partners: Demand For Cloud Services Is ‘Up Significantly’ For 2021]

Last month, a DoD spokesman lamented the possibility of “an even longer litigation process” if a judge does not dismiss that latest AWS allegations – and said that the department would have to “reassess the strategy” if the case is not dismissed.

Starting over with the same solicitation for JEDI wouldn’t make sense for the DoD at this stage, said Steven Schooner, professor of government procurement law at the George Washington University Law School and formerly an associate administrator in the Office of Federal Procurement Policy.

However, “one option is for DoD to ‘amend the solicitation’ and, in effect, take a half-step back and seek revised proposals from AWS and Microsoft,” Schooner said in an email to CRN. The end result could be a multi-cloud solution for the JEDI project.

“Many observers favor the multiple award approach -- indeed this has been one of the primary criticisms of the acquisition strategy throughout,” Schooner said. “Awarding to multiple vendors would almost certainly reduce DoD’s litigation risk -- e.g., another similar protest or round of protests.”

Microsoft and AWS declined to comment on Friday.

In a statement provided to CRN on Friday, the Department of Defense said that its cloud computing needs “will be met one way or another.”

“Independent of any litigation, the Department continues to have urgent, unmet cloud capability gaps, which include enterprise-wide, cross-domain commercial cloud services, that are available from the home front to the tactical edge,” the DoD said in the statement to CRN. “We remain fully committed to meeting these requirements—we hope through JEDI—but these requirements transcend any one procurement, and they will be met one way or another.”

The DoD also noted in the statement that “while JEDI is one solution for unmet enterprise wide cloud capability gaps, DoD is, and will remain, a multi-vendor, multi-cloud environment. The scale and complexity of DoD missions require cloud capabilities from multiple vendors.”

In terms of the JEDI contract, the project is intended to “improve the speed and effectiveness” of the U.S. military using cloud technologies, the DoD has said.

Earlier this month, Bloomberg reported that Microsoft is in danger of losing the contract due to the prospect of continued lengthy litigation. While the DoD has fought the AWS challenges to date, the department appears to be losing patience with the delay in the execution of the contract, according to the report.

The latest challenge from AWS, filed in December in the U.S. Court of Federal Claims, included accusations that President Donald Trump’s “unapologetic bias” against Amazon and its CEO Jeff Bezos tainted the awarding of the JEDI contract.

The judge in the federal claims case, Patricia Campbell-Smith, could rule “at any time” on whether to dismiss the AWS allegations, Bloomberg reported. Alternatively, the judge could grant the AWS request for further discovery in the case.

According to AWS, the Trump administration was operating in an “increasingly corrupt environment” when it awarded the JEDI contract to Microsoft.

President Trump frequently criticized Amazon and Bezos in attacks partially stemming from Bezos’ ownership of The Washington Post, a newspaper unaffiliated with Amazon that Trump believed had been unduly critical of his administration.

In a filing in December responding to AWS, Microsoft said that legally, the allegations from AWS needed to have been raised prior to the awarding of the contract. The DoD also said that what AWS is attempting to do is not permitted under legal precedent.

In his email to CRN, Schooner said that “during the prior administration, it was pretty clear that DoD had dug in its heels, so rethinking [the JEDI award] didn’t appear to be an option.”

But there’s an argument to be made for re-soliciting the award in some fashion at this point, he said.

“Many think [that] would make sense given the criticism of the original procurement strategy, the passage of time, the evolution of the marketplace, etc.,” Schooner said.

AWS is the No. 1 public cloud provider by market share, though Microsoft’s Azure cloud platform is the second largest and has been gaining ground against AWS in recent years, according to data from Synergy Research Group.

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